Other Constitutional Rights

The Bill of Rights provides numerous protections for people involved in criminal proceedings, starting with police investigations and continuing through the trial and appeal processes. The Fourth Amendment places important restrictions on police, including the requirement of search warrants. Most people are familiar with the rights commonly known as Miranda rights, such as the right to remain silent and the right to an attorney. Once the state has brought charges against a person, the Fifth and Sixth Amendments provide important protections that help to ensure a fair trial and limit the state’s ability to charge a person in connection with an alleged crime once that person has been acquitted.

Confrontation Clause

The Confrontation Clause of the Sixth Amendment essentially guarantees a criminal defendant’s right to a face-to-face confrontation with his or her accuser. Any statements offered into evidence that would tend to incriminate the defendant should be inadmissible as hearsay if the witness is not available to testify at trial.

For several decades, out-of-court statements could be admitted if they were found to be “reliable,” such as if they were corroborated by additional evidence. Ohio v. Roberts, 448 U.S. 56 (1980). The Supreme Court changed this standard in Crawford v. Washington, 541 U.S. 36 (2004), holding that the Confrontation Clause excludes any evidence that is “testimonial” in nature if the witness is not available. Justice Scalia, writing the opinion for the court, noted that "[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty."

Speedy and Public Trial

The Sixth Amendment guarantees criminal defendants the right to a speedy trial, which generally means that the state may not unreasonably delay a criminal proceeding. The Supreme Court developed a four-part test, applied on a case-by-case basis, to determine whether a defendant’s right to a speedy trial has been violated:

The length of the delay;

The reason offered by the state for the delay;

Whether the defendant adequately asserted the right to a fair trial; and

The federal government and numerous states have enacted “speedy trial statutes” that set deadlines for different phases of a criminal case. The federal Speedy Trial Act, 18 U.S.C. § 3161 et seq., requires the state to file an information or indictment within 30 days of an arrest, and it requires commencement of a trial within 70 days. Exceptions and continuances are available with the court’s permission.

Fair and Impartial Jury

A criminal defendant has the right under the Sixth Amendment to a trial before “an impartial jury of the State and district wherein the crime shall have been committed.” In federal criminal trials, a jury must reach a verdict unanimously, but states are not bound by this part of the Sixth Amendment. Apodaca v. Oregon, 406 U.S. 404 (1972). Courts typically hold a proceeding, known as voir dire, shortly before the beginning of a trial to allow the defendant and the state to question prospective jurors. Each side may strike prospective jurors for various reasons, including bias or conflict of interest.

The right to a jury in a criminal trial does not apply to “petty crimes,” defined as those for which the maximum possible sentence of imprisonment is six months or less. This is true even if a defendant is facing multiple petty offense charges in a single trial. Lewis v. United States, 518 U.S. 322 (1996). Minors who are involved in proceedings in the juvenile criminal system also do not have a right to trial by jury, except for serious felonies.

Double Jeopardy Clause

The Fifth Amendment states that a person may not “be subject for the same offence to be twice put in jeopardy of life or limb.” In practice, this means that the state may not prosecute a person for the same offense after an acquittal, a conviction, or a mistrial past a certain point in a trial. It also means that a person may not be subject to multiple punishments for a conviction. The point after which this right applies, or when jeopardy “attaches,” usually occurs once a jury is sworn in, a judge begins to hear evidence in a bench trial, or a court accepts a defendant’s plea.

The most common dispute regarding double jeopardy involves whether multiple prosecutions involve the same offense. The same conduct may violate multiple statutes, and in some cases, prosecutors may bring charges under one statute after an acquittal of charges on another statute. A particular offense is not the same, for double jeopardy purposes, as conspiracy to commit that offense. United States v. Felix, 503 U.S. 378 (1992). If the same evidence is required to prove two separate offenses, however, double jeopardy may prevent prosecution for one offense if jeopardy has already attached in a prosecution for the other offense. Blockburger v. United States, 284 U.S. 299 (1932); Brown v. Ohio, 432 U.S. 161 (1977).

Charges under federal law do not violate double jeopardy after an acquittal of state charges, or vice versa, under the “dual sovereignty” doctrine. Bartkus v. Illinois, 359 U.S. 121 (1959); Abbate v. United States, 359 U.S. 187 (1959). However, the federal government rarely pursues charges for alleged crimes that have already been litigated in a state criminal proceeding. Petite v. United States, 361 U.S. 529 (1960).